This issue of The American Interest includes a series of articles proposing concrete policy reforms designed to improve the performance of the American political system. They come out of a project at Stanford University’s Center on Democracy, Development, and the Rule of Law that has taken a hard look at American political institutions compared to those of other advanced democracies.
The project began with the observation that the United States had become much less of a shining example of advanced democracy for many people around the world than it was at the end of the Cold War. To some extent, all advanced democracies have suffered from eroding legitimacy and performance in recent years. That said, there has been wide variation at the national level among established democracies in coping with the need for adjustment and reform. Several countries, including Germany, Sweden, Denmark, the Netherlands, Canada, Australia, and New Zealand, have all engaged in successful policy reform efforts of various stripes over the past two and a half decades, liberalizing labor markets, reducing deficits, and changing institutional rules in the face of substantial political pushback. Others, like Italy, Greece, France, and Japan have found it much more difficult to make hard choices. It is difficult to make the argument that democracy is in trouble everywhere; much easier to make the case that institutions matter when it comes to flexibility and reform prospects. Within this spectrum, America’s system seems to be at the more troubled end.
Many Americans regard U.S. democracy as exceptional. Most of the rest of the world regards it as peculiar. Americans tend to blame politicians, activists, and interest groups for their political problems, not their Constitution. Foreign observers wonder how America functions as well as it does with an antiquated foundational design that has never really succeeded outside U.S. territory. Convincing Americans that their Constitutional structure needs updating, let alone successfully navigating the amendment process, seems to get harder even as the public’s discontent with American politics rises. By contrast, we do not take for granted the notion that American institutions represent some kind of democratic “best practice.” Americans would do well to learn from other countries, and face up to the need for adaptation. On the other hand, we need to be realistic about the kinds of changes that are politically possible under current circumstances.
The U.S. Constitution was deliberately designed to be hard to change. The combination of supermajority requirements for both Congressional and state approval creates a very high hurdle for Constitutional amendments. America’s pride in its own institutional peculiarity also makes it culturally resistant to major change, effectively ruling out efforts to adopt parliamentary government, compulsory voting, or even electing a President by popular vote. In addition, the country’s impressive record of political stability, economic prominence, and military dominance undermines any sense of urgency about altering its basic political design. Why disrupt a political system, however quirky it seems, when the nation has prospered for so long?
This creates a binding political constraint on reform proposals. It means that those who want to solve contemporary problems like excessive partisan polarization and policy stalemate must restrict themselves to proposals that fit comfortably within America’s unique system. Those who hope to reform the system must settle for workarounds and adaptations that mitigate problems without altering fundamental features like the separation of powers, strong First Amendment rights, or state administrative control over the time, place, and manner of elections. This latter condition is responsible for the deterioration of the electoral integrity of American democracy, a subject Steve Stedman takes up in his essay below.
U.S. political reform is necessarily path dependent. The Electoral College is a good example. An 18th-century method for filtering popular sentiment and, in the U.S. Federal context, to ensure regional balance among sovereign states, the Electoral College sometimes leads to the biggest vote getter for President losing the election, at a time when the political significance of the states is no longer close to what it used to be. But changing the system would require a constitutional amendment or agreement to highly improbable workarounds. This is one example of many in which options for change are constrained by institutional choices made at earlier points in the nation’s history and held in place by institutional and cultural inertia. The big question is whether feasible solutions, as opposed to a large structural overhaul, will be sufficient to meet America’s most pressing contemporary political problems.
While Americans are not yet ready to throw out all or even parts of their outmoded Constitution, they are nonetheless displeased with the current state of U.S. politics according to many indicators. Congressional approval, for instance, has been consistently below 20 percent for several years, and only about a third of the American public voices confidence in government. To some extent this is contextual. Like citizens in many other OECD democracies, Americans tend to view their governments less favorably when economic and social conditions dip. But even as the economy has recovered in recent years, there is a lingering feeling that U.S. politics is broken.
People give many specific reasons for this (for example, the demise of the mainstream media, economic inequality, a broken campaign finance system, and more), but one trend is regarded as most problematic: the rising level of political polarization in the United States over the past twenty years. In her contribution to this series, Didi Kuo reviews the ongoing debate among political scientists as to whether the citizens themselves or politicians and activists are responsible for this. Almost all observers agree, however, that polarization creates special problems for U.S. politics due to the country’s peculiar institutional design.
America’s separation of powers arrangement and strong federalism provide many opportunities for obstruction—what political scientists refer to as veto points. Hence, effective governance either requires a degree of public policy consensus typically achieved only during a war or major crisis, or a willingness among various political players to compromise, negotiate, and bargain over differences. When there is high political polarization, neither condition obtains: Citizen preferences are highly divided and people dig in their heels rather than make concessions in the interests of agreement. In effect, the country’s political system and its sociology are incompatible.
Polarization is a stressful condition for any democracy. But a parliamentary democracy that fuses executive and legislative power, or a federal system with a dominant center, can operate more effectively under polarized conditions than one that disperses power so widely that it offers numerous opportunities to block government decisions and actions. In the latter case, policymaking can be stalemated much more easily—what one of us has labeled “vetocracy”, or rule by veto.1 As the Fukuyama article on budgeting indicates, Congress’ repeated failure to pass timely budgets is perhaps the chief indicator of the system’s dysfunction. And even when policies make it through the lawmaking stage (like the Affordable Care Act), it is hard to achieve decision-making closure because an issue can be repeatedly contested in the courts or through public input into agency regulations—a state of affairs that, in this case, has been abetted by the protracted delays and confusion in writing the many regulations that the law directs but does not clearly stipulate.
The dispersion of American political power also diffuses responsibility. When highly polarized political parties control different branches or levels of government, citizens have a harder time figuring out who to blame or reward for the outcomes they experience. The blurriness of political accountability in turn encourages bolder obstruction. Representatives are more likely to play legislative chicken if they can walk away from the crash unscathed, or, even worse, if they can personally gain from the disaster. Irresponsible political behavior now has its own rewards in the U.S. system, such as eliciting more donations from an agitated activist base or receiving the kind of media exposure that can lead to a lucrative career upon leaving office.
America’s key reform challenge is how to deal with this polarization problem. Changing the system to eradicate the abundance of veto points requires the kind of constitutional action that is essentially off the table at this point in history. Other serious reforms that target deeper causes such as economic inequality or civic education require a lengthy time horizon and a broad consensus that is hard to achieve in modern-day America. Politically realistic reform focuses on institutional fixes that either aim to mute partisan voices or adapt institutions to handle polarized political strategies.
Is the U.S. electoral system a cause of increasing polarization, or are electoral controversies mostly an aftereffect? The electoral system consists of rules that govern candidate and voter eligibility, the method and number of elections, candidate labels, campaign conduct, and the way that winners are determined.
Ironically, the American electoral system was largely designed to mute sharp electoral cleavages and promote coalition-building within “big tent” political parties. American political parties therefore have historically been less disciplined and more decentralized than their European counterparts. Maurice Duverger famously characterized them as anomalous vestiges of an earlier period when mass parties were just emerging in response to the task of mobilizing newly enfranchised electorates. But that observation was not quite right. American parties are more aptly compared to regulated utilities: a government recognized duopoly that provides loose coordination between the electorate, elected officials, and party organizations.
One of America’s unique contributions to political science is that it gives the lie to the proposition that polarized parties have to be centralized and disciplined. We have created polarization from organizational chaos. As William Graham Sumner observed back in the 1870s, and as the Cain essay elaborates below, the huge number of entry points into the political system creates a great deal of “noise”, which tends to benefit the groups best organized to focus their efforts. This is why the presumption that the solution to problems in a democracy is more democracy—often in the form of more transparency—is often mistaken.
For example, party activists tend to have a disproportionate voice in party caucuses and primaries because they bother to show up when more indifferent and moderate voters do not. And the current legal framework for campaign finance has encouraged a rapid proliferation of outside independent spending, enabling individuals and interested groups to invest money in political candidates and causes without caps (and often without identification). Many of these outside spenders are highly ideological, and many others gain enormously from the logic of collective action. By supporting and extending the campaigns of losing candidates beyond what a capped-money system would allow, the former group pulls the frontrunners out to the more extreme positions necessary to win and maintain the votes of an activist-dominated primary electorate. In his contribution, Larry Diamond suggests reforms to the electoral system that would mitigate polarization and make more likely the rise of more centrist coalitions.
On the other hand, the very meaning of “free speech” has changed with technology. As Nate Persily points out, the Supreme Court’s Citizens United decision that caused such upset revolved not around television advertising but around a video posted on the internet. The latter is subject to different and subtler forms of manipulation than television, and will pose different kinds of regulatory problems.
The five essays below do not pretend to address all the structural issues confronting the U.S. political system. But some of those unaddressed in detail are important enough to deserve mention here—and that is the burden of the remainder of this introduction.
Congress is the most unpopular branch of American government. It is a prime target for public blame about political dysfunction. But is that fair? Certainly, Members of Congress can be their own worse enemy, especially since the Members who attract the most attention usually say or do the most outrageous things. Because the public’s appetite for politics is limited, political coverage drifts toward entertaining and dramatic personalities. We see this in the pre-primary success of Donald Trump.
As an institution, Congress is closely associated with polarization, primarily because it is an agent of stalemate and obstruction when control of the government is split between the parties. By contrast, the opposition party in the British parliamentary system can rail heatedly against the government in Question Time, but the fusion of executive and legislative power inhibits cross-branch obstruction. Polarization in a parliamentary government might increase the chances of policy reversal at some later point in time with a change in party control, but the odds of obstruction and stalemate do not change.
The opposite is true in the U.S. presidential system. In a separation of powers arrangement polarization reinforces the difference between legislating under united versus divided government. When the same party controls both houses of Congress, polarization increases legislative productivity by creating more internal discipline through party-line voting. In a situation of divided government, however, polarization is more likely going to grind lawmaking to a halt.
The Obama Administration, for instance, passed a good deal of important legislation in its first two years when the Democrats controlled both Houses of Congress but achieved very little after 2010, leading the President to rely on executive actions that did not require Congressional approval. In this respect, the Obama Administration is walking down the route of many Latin American presidential systems, which have delegated huge powers to the presidency in the face of legislative stalemate. Switching to a parliamentary form of government might enable the U.S. political system to cope better with a polarized political sociology, but that option is not even remotely feasible politically.
Some possible Congressional reforms are blocked not by the Constitution but instead by a widely accepted political logic. The most notable example is the Senate filibuster. With the right sociology, a supermajority cloture vote might induce compromise, particularly if, as is the usual case, the majority party needs a few minority party votes to stop a filibuster. When polarization increases, however, the ideological gap between the parties widens, and coalition partners from the other side are harder to find. In addition, if individual Senators fear no electoral consequences for supporting the obstructive filibuster, then any incentive to compromise disappears entirely.
This could be fixed by amending or eliminating the filibuster rule, but only if there is enough will in the Senate to do so. To date, the Senate has not been able to muster the votes to do this, although they have recently limited the filibuster’s scope to some degree. With party control shifting back and forth, many Senators prefer to hedge their bets by retaining the filibuster. Since they cannot be sure about whether they will be in or out of power, they seem to value the ability to obstruct what they oppose when they are out of power more than their ability to enact legislation when they are in the majority. Their risk-averse viewpoint may also derive in part from watching the House of Representatives, where being out of power is perceived as a plight so miserable that it prompts many veterans to retire when they see no prospect of returning to the majority.
One of the most contested aspects of Congressional reform is the possible tension between polarization and the aforementioned interest-group goals. Many interest groups are looking for legislation, regulation, or tax breaks that materially benefit their organization, profession, or business. They give money to obtain access and favors, not in pursuit of a broad ideological agenda. Some former Members of Congress plausibly argue that earmarks used to be an important tool for encouraging compromise. Most reform groups dismiss this suggestion out of hand.
Earmarks aside, material interests can play a role in tempering partisanship. The showdown over increasing the debt limit lasted as long as it did partly because the stock market did not show concern as quickly as one might have expected. Because political brinksmanship was viewed as nothing more than political theater aimed at the party base, few on Wall Street and elsewhere really expected the obstruction to last. But ignoring risky behavior only encourages and enables it. Alas, politics in a stable democracy sometimes suffers from moral hazard problems. Since the dollar is viewed as a safe investment and Congress had never before taken the United States over the brink of financial ruin, it was easy to dismiss the showdown as anything other than a dramatic prelude to an inevitable resolution. This encouraged some Republicans to believe that they could push the confrontation further. After all, the markets were not in a panic. In the end, of course, the markets were right. But it reinforced the image of Congress as the national hotspot for polarization.
In the American design, parts of the government require a delicate mixture of impartial expertise and political responsiveness. Executive Branch agencies are one example. In some idealized conceptions of bureaucracy, agency officials are exclusively neutral experts whose job is to implement the law as impartially as possible. Civil servant qualifications would be judged on the merits, and bureaucrats are subject to strict conflict-of-interest rules.
In reality, bureaucrats are often responsive to their political masters. As compared to many other democracies, the U.S. system has a relatively large number of political appointees in administrative departments: 4,000–5,000 senior jobs turn over with every change in administration, compared to a couple dozen in most parliamentary democracies. The number expanded considerably after World War II. Some of these people are highly qualified, but some (especially Schedule C appointments) acquire these jobs for patronage reasons—for example, as a reward to workers from the President’s campaign.
The best argument for placing political appointees in agencies is that they ensure greater bureaucratic responsiveness to the President. Some scholars dispute this logic, however. At a minimum, political appointees create the appearance of responsiveness, which often is all that matters in politics. Bureaucratic accountability is further blurred by the growing importance of the President’s Executive Office staff. Under the Obama Administration, they at least rival and sometime exceed the influence of Department Secretaries. Many of them are also highly political.
The effect of polarization on the bureaucracy is to tilt the balance further from neutral expertise toward political responsiveness. Like the activist base, political appointees are more likely than the average citizen to have a well-formed ideology. But a redeeming feature of many political appointees is that they are more apt than pure activists to care about the President’s political standing and the effect policies might have on the President’s re-election or Congressional races. While there is some centrifugal pull from political appointees, the more extreme pressure comes from the activist base, not from those worried about their government jobs.
In certain policy areas, however, agency-neutral expertise is challenged yet again at the final stages of implementation. Environmental and energy permits require opportunities for the public to observe and influence agency decisions. Commercial and nonprofit organizations tend to dominate these meetings. As their perspectives on the Endangered Species Act or climate change have polarized over the years, agency officials have to contend with and balance more divergent views. This is in essence a political task imposed on personnel who are primarily trained to apply laws, not to reconcile policy differences.
Polarization at this stage has the additional effect of preventing closure. In some idealized form of democracy, policy disputes are settled when laws are passed. But in reality, U.S. laws are always modified as they are implemented by agencies or reviewed by state and Federal courts. And as particular policy areas have become more polarized, issues that should have been resolved earlier are contested once again as agencies make specific decisions. Fights over a specific endangered species in a specific local setting, for example, are sometime really proxy battles for a larger war over the importance of species protection.
Agencies themselves sometimes develop a strong identity with their mission. This can contribute to polarization in a policy area. One example is the Justice Department’s Voting Rights division in the 1990s with respect to enforcing Sections 2 and 5 of the Voting Right Acts. They aggressively applied the law to force local communities to use redistricting as a tool for increasing Latino and African-American representation. It was an effective approach, but it also increased racial and ethnic tensions between white and nonwhite communities in many areas.
The presumption of impartiality is even greater for the Federal courts. Whereas some state court judges are elected in one form or another, Federal judges are appointed for life. There is a stronger presumption for them of neutrality and expertise as opposed to political responsiveness. Even so, recent Supreme Court decisions on highly salient cases tend to split predictably along liberal-conservative ideological lines, with either Justice Kennedy or Chief Justice Roberts as the swing vote.
The Supreme Court is still viewed as acting in a less partisan fashion than the other branches, but that does not mean that it has remained completely above the fray. Several important Supreme Court decisions have contributed to political polarization and the formation of enduring electoral cleavages. Roe v. Wade (1973), for instance, nationalized the abortion debate and set in motion an ongoing political battle by foes to over-turn or restrict the right to an abortion. Brown v. Board of Education (1954) had a similar effect on race relations.
The fact that the Court has not been dragged into the partisan morass more than it has is due to the actions of the swing justices. In two recent health care cases, King v. Burwell (2015) and NIFB v. Sibelius (2012), John Roberts has deliberately crafted a balanced decision with the apparent intention of preserving the Court’s integrity.
Voter qualification and redistricting disputes have also pulled the Court to a steep political edge. Without the now essentially defunct “political question” doctrine to protect it, the Court is regularly asked to referee electoral rule disputes. But to political eyes, a neutral referee becomes a hometown referee if decisions do not go their way. This is potentially a very important problem, given our inability to abolish the Electoral College or our decentralized election administration system. That is why Bush v. Gore was perhaps the closest the Court came to choosing partisan sides.
These types of demands on the Court also illustrate how hard it has become to achieve closure. The American political system essentially provides four bites of the apple: Lose the presidential election, and the fight can be continued in the Congress; if defeated there, it is time to lobby the agencies; and if all else fails, sue.
In the long run, Americans need to recognize that several aspects of their constitutional framework create problems that other democracies handle more easily. The system of checks and balances that limits the danger of overly strong government also makes reform of the government more difficult. It may take time and a few more serious crises perhaps for the public to recognize this. Or it might never happen at all.
The second-best strategy is to look for solutions within the inherited constraints. The most pressing task is to ensure that the U.S. political system can pass the stress tests posed by rising polarization and racial tension. This means enhancing our political system’s incentives and capacity to bargain, build coalitions, and compromise.
1Francis Fukuyama, “The Decay of American Political Institutions”, The American Interest (January/February 2014).